Ifaco Feed Company S.A. v Societe De Distribution Nouvelle D'Afrique (Sodinaf) S.A.R.L. & Anor

A committal order will not be set aside or discharged where the alleged defects in service or notice are unsupported by the evidence, and the contemnor knew of the application and hearing. The court may proceed in the contemnor’s absence where notice of the hearing was established and the relevant circumstances justify doing so. Ongoing without-prejudice discussions do not prevent enforcement proceedings from continuing unless a binding agreement has been reached which has that effect. Relief based on purging contempt requires prompt and materially sufficient compliance with the underlying disclosure order.

Ifaco Feed Company S.A. obtained a €4.75 million GAFTA arbitration award against Sodinaf. An order was made requiring Sodinaf to disclose its assets, supported by an affidavit. Following non-compliance, Phillips J committed Mr Siaka, Sodinaf’s chief executive and principal owner, to prison for two years.

Sodinaf and Mr Siaka applied to set aside or discharge the committal order. They alleged inadequate service and notice, improper determination in Mr Siaka’s absence, failure to pause before sentencing, and a prior agreement that Ifaco would not pursue the proceedings. The central issues were whether those grounds were established and whether the contempt had been purged.

1. Application dismissed. The applicants had not purged their contempt. The witness statement recently provided by Mr Siaka was not an affidavit, did not comply with the disclosure order, and did not disclose the assets of Sodinaf, including at least one potentially significant asset. A further application could be made if the required information were promptly provided.
2. The evidence established that Mr Siaka knew of both the disclosure order and the committal application. Phillips J was entitled to dispense with personal service, having considered the communications and other evidence demonstrating that the application and its consequences had been brought to Mr Siaka’s attention.
3. Phillips J was entitled to proceed in Mr Siaka’s absence. Notice of the hearing had been given through numerous communications, and the circumstances justified proceeding without him.
4. A judge dealing with committal should pause before sentencing, but Phillips J had done so. His conclusion that Mr Siaka had not engaged with the proceedings and that there was no real likelihood of engagement justified imposing sentence without further delay.
5. The alleged settlement did not provide a basis for relief. The documents showed, at most, incomplete without-prejudice discussions before the hearing. No binding agreement had been reached by 5 September 2019, and there was no agreement preventing Ifaco from pursuing the committal or enforcement proceedings. The later signature of the proposed memorandum, with a material alteration and after Ifaco had withdrawn consent, did not establish agreement.
6. The hearing before Phillips J was inter partes. Strictly, there was no obligation of full and frank disclosure, although an existing agreement would have been relevant to the decision to proceed in Mr Siaka’s absence. Since no agreement existed, there was no material non-disclosure.
7. If genuine difficulties prevented provision of an affidavit, a witness statement explaining those difficulties might support a later application. The present application was dismissed.

Not stated in the judgment.